Possible Inclusion of Limitations & Exceptions in TPP Good Step, by No Means Adequate

PK and others have argued for a long time that international agreements, including the proposed Transpacific Partnership Agreement (TPP) must include mandatory provisions on limitations and exceptions. These provisions must promote fair use of works and also generally reflect the robust user rights that that US copyright system seeks to promote. Perhaps as an acknowledgement of the concerns that these arguments reflect, the Office of the United States Trade Representative (USTR) has announced that it is proposing a provision on limitations and exceptions in the TPP.

While the actual provision has not been made public, a blog post on the USTR’s website provides a description. According to the USTR’s blog post, the provision would oblige parties to “seek to achieve an appropriate balance in their copyright systems in providing copyright exceptions and limitations for purposes such as criticism, comment, news reporting, teaching, scholarship, and research.” While this description articulates very well the goals that copyright limitations and exceptions must seek to achieve, whether the provision that is proposed by the USTR will achieve these goals remains to be seen.

As an initial matter, the proposed provision (or provisions) must not be limited to the language articulated by the USTR but must permit extension of newer limitations and exceptions that are suitable to the digital environment and to local conditions in the TPP countries. Furthermore, it is unclear whether the provision will call for mandatory limitations and exceptions or merely provide that parties may provide for limitations and exceptions. A permissive provision would continue the trend of treating user interests as secondary concerns that can be eroded by future international agreements that increase the scope of exclusive rights.

We look forward to seeing the actual language and providing our feedback on it. However, the fact that the USTR has not already provided such access speaks volumes about the importance the agency places on user interests. If the public is the constituency that is supposed to benefit from these provisions, how can they be crafted without extensive consultation with the public and its representatives?

The USTR’s blog post claims that the agency has “benefited from the input of a wide variety of stakeholders” in crafting these provisions. Yet, it is extremely hard to determine who those stakeholders are and whether users were part of those consulted. PK and others have provided detailed comments and suggestions to the USTR on what limitations and exceptions provisions should look like. Yet, the agency has never engaged in a discussion with PK about the merits or flaws of our comments.

Finally, while the inclusion of provisions on limitations and exceptions is a positive development, it does not address the adverse impacts that several TPP provisions would have on user rights. For instance, the TPP’s proposals to increase stringent enforcement mechanisms and include unbalanced provisions on technological protection measures continue to threaten user interests.